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Limits to freedom of speech

Supreme Court Associate Justice Oliver Wendell Holmes around 1924 (Photograph courtesy of the Library of Congress)

The fault lines that have emerged over Bermuda’s approach to the Covid-19 crisis and especially towards vaccination are deeply worrying.

It is easy to forget, when the sound and the fury are loudest, that the vast majority of Bermuda residents have already voted with their feet and been vaccinated for the coronavirus. It is also encouraging that registrations have been rising recently.

But a minority — about one in four adults — remains undecided or has chosen definitively not to get the jab. A very small minority of that group have valid medical reasons not to be immunised. Another small subset, whether through social media or through comments on this and other media’s websites, are not shy about making their views known, especially when they can do so anonymously.

This newspaper is a fervent believer in freedom of speech. It agrees with Oliver Wendell Holmes, one of the greatest United States Supreme Court Justices, that the most effective way for the community to determine the truth of an idea is to debate it vigorously in public. This is the basis of liberal democracy — that the truth will out when tested in the marketplace of ideas.

But there have always been limits. The late US senator Daniel Patrick Moynihan said: “You are entitled to your opinion. But you are not entitled to your own facts.”

And freedom of speech does not extend to falsely shouting fire in a crowded theatre and causing panic, to apply another dictum of Justice Holmes.

Spreading falsehoods that will cause physical harm and even death to innocent people is unacceptable in any society, especially one facing a public health emergency, as Bermuda is now.

Those who choose not to vaccinate have that right in a free society. But just as they do not have the right to shout fire in a crowded theatre, they must know that they run the risk of being barred from normal everyday activities because of the threat they pose to others; and they do pose a threat.

Bermuda has tried to regulate the non-vaccinated through the use of SafeKey and regular testing. The result was that testing facilities were overwhelmed while contact tracing also fell apart; making it difficult to determine how cases were spread or who should be isolated.

The evidence is clear. Vaccinations remain the single best way of containing the virus. They are not perfect, but if Bermuda had 80 per cent of the population vaccinated instead of 66 per cent, it would not be in the crisis in which it now finds itself.

Only 25 per cent of those Covid-19 active cases were fully vaccinated while 75 per cent of the cases were not.

Because so many more people are vaccinated than are not, that means an unvaccinated person in Bermuda is many times more likely to become infected, is more likely to end up in hospital and is more likely to die.

These facts are indisputable. And yet a small minority of people is determined to ignore them and to instead spread misinformation and half-truths to encourage people not to take vaccinations when doing so puts them and the general public at risk.

The illogic is mind-boggling. One of the prime arguments against taking the vaccination was that it had received only an emergency authorisation, ignoring that it had been tested on tens of thousands of people before being authorised — and now hundreds of millions with minimal side effects.

And yet the same people who would make that argument will demand to use medications that are completely unproven. This makes no sense. Winning the argument has become more important than accepting the facts.

This places organisations such as The Royal Gazette in a difficult situation. It continues to believe fervently in the idea that the truth will out and that the truth will overcome those who lie and misinterpret the facts. But Justice Holmes’s argument was applied in a world before social media, when people could not find constant reinforcement for their own misguided beliefs and where algorithms did not drive them again and again to sites that reinforced the same incorrect beliefs without allowing contradictory arguments.

In a world that is more closely connected that ever before, people are able to stay increasingly in their own echo chambers.

In this context, newspapers must consider whether they have an obligation to filter comments on their websites to reduce the flow of misinformation and outright lies. Indeed, newspapers have always barred complete untruths, but there have always been grey areas where facts and opinions merge.

All the same, this can be done only with extreme reluctance, for the reasons cited above, plus the sheer logistical challenge it creates for a small operation such as this one. Lies and misinformation are like mushrooms — they continue to grow and spread in the dark. But this does not suffice as a reason to do nothing.

For now, this newspaper will continue to do its best to monitor comments, but it will limit the number of stories where comments can be posted, especially in relation to Covid-19.

Those who present lies and offer evidence-free assertions as a matter of course are now on notice. False statements will be deleted. Repeat offenders will be banned. And when they come back with a new identity, they will be banned again and again if they continue with the same behaviour.

Freedom of speech is a right, but there is no right to endanger lives through lies and misinformation.

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Published October 06, 2021 at 8:01 am (Updated October 05, 2021 at 3:56 pm)

Limits to freedom of speech

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